Director of Public Prosecutions v Hart (a pseudonym)
[2022] VCC 336
•21 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLINTON HART (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2022 | |
DATE OF SENTENCE: | 21 March 2022 | |
CASE MAY BE CITED AS: | DPP v Hart (A pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 336 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Incest – indecent act with a child under 16 – plea of guilty – victims of offending were the half-brother and half-sister – gross breach of trust –– youthful offender at time of offences – procedural delay – general deterrence, just punishment and denunciation principal sentencing considerations
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; Holland (a pseudonym) v. The Queen [2018] VSCA 241; DPP v. Dalgliesh (2017) 262 CLR 428
Sentence: Total effective sentence of three years and nine months’ imprisonment, non-parole period of two years and three months fixed
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr R. Hammill (plea) Mr J. Sivaratnam (sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr C. Farrington (plea) Mr A. Maselli (sentence) | James Dowsley & Associates |
HER HONOUR:
1Clinton Hart,[1] you have pleaded guilty to three charges of incest contrary to s44(4) of the Crimes Act1958 (Vic) (‘the Act’), being charges 1, 3 and 4. At the time of your offending the maximum penalty for the offence of incest was five years’ imprisonment.[2] Although the maximum penalty for the crime of incest has since increased significantly, the law requires me to sentence you having regard to the maximum penalty of five years that applied at the time.
[1]A pseudonym
[2]By operation of s 114(2) of the Sentencing Act 1991 the maximum penalty for offending that was committed prior to the commencement of a provision that reduced the maximum penalty extends to offences where no penalty had been imposed as at that commencement date. Here, the maximum penalty for the offence of incest was reduced from 7.5 years to 5 years with effect from 31 August 1997 by operation of s60 and Schedule 1 of the Sentencing and Other Acts (Amendment) Act 1997.
2You have also pleaded guilty to one charge of committing an indecent act with a child under the age of 16 years, contrary to s 47 of the Act (charge 2), the maximum penalty for which is 10 years' imprisonment.
3The victims of your offending were your half-brother and half-sister. Your offending against the victims occurred during the 1990s, over a span of approximately five years between 1993 and 1997.
4At the time of your sexual offending against your half-brother he was between 12 and 13 years of age. Once that offending ceased you began to sexually abuse your half-sister; commencing in 1996, when she was 14 years old. That offending ceased when your half-sister was around 17 years old; at which time she met her boyfriend, now husband.
5You were born in 1972 and were between 21 and 26 years of age at the time of the offending. You have no prior or subsequent criminal history. You are now 49 years old.
Circumstances of offending
6The circumstances of your offending are detailed in the summary of prosecution opening dated 4 February 2022 and is the agreed basis upon which you are to be sentenced. A summary of your offending is as follows.
7Your half-brother, Lawrence Evans[3] was born in May 1981. Your half-sister, Jill Berry (née Evans)[4] was born in June 1982 and is the biological sister of Lawrence Evans. The three of you share the same mother, Cindy Evans.[5] Ms Evans separated from the victims' father when they were around 3 and 4 years of age and they had little contact with him while growing up.
[3]A pseudonym
[4]A pseudonym
[5]A pseudonym
8When these sentencing reasons are published, all names will be anonymised to prevent the identification of the victims in this matter.
9You have never known your own father. After you were born you lived with your maternal grandparents, known to you as 'Nan' and 'Pop', in Croydon. For a period your mother also lived there with you, but did not play a significant role in raising you.
10After your mother met the victims’ father, Brent Evans,[6] she moved to live in Mount Evelyn with him. You remained with your Nan and Pop. You did not live with your mother and step-siblings but you did have a room in the Evans’ family residence in Mount Evelyn. Following the death of your Pop in 1992 you saw more of your step-siblings at family functions and events, and lived with them on occasion. In addition, they would visit you with their mother at the Croydon address, where you had your own bedroom and use of a caravan at the property.
[6]A pseudonym
11Both of your step-siblings idolised you as an older brother, although they recognised you had a bad temper and could be frightening when you 'lost it'.
Lawrence Evans
12I deal first with your offending against your half-brother, Lawrence Evans. Sometime before September 1993 you took your half-brother on a holiday to New South Wales. This was the first time you had gone on an interstate holiday alone together. You stayed together in a Sydney motel for three to four nights before returning to Victoria.
13Your half-brother recalls being sexually assaulted by you on the first night of the holiday, in the motel room. He was 12 years old at the time.
14You provided your half-brother with alcohol before undressing and masturbating, naked, in front of him. You encouraged him to do the same and after cajoling and pleading with him to do so, he complied. You then masturbated him while he lay on the bed and then performed oral sex on him for a short period. You then asked him to get on all-fours and, after putting on a condom, penetrated your half-brother’s anus with your penis. The incident ended once you ejaculated. You later apologised for what had happened and both of you then slept in separate beds.
15On another night in Sydney you attempted to engage in further sexual activity but your half-brother refused to participate.
16This conduct does not form the basis of any of the charges on the indictment in this matter and you are not being sentenced in relation to this incident. It is provided by the prosecution as contextual background to the sexual offending that then followed.
17Having returned to Victoria, your half-brother said nothing about the sexual assault to anyone. After a few months the victim found himself alone with you in the house in Croydon. He was seated, fully dressed on the couch, and you were naked, pleading with him to perform oral sex. The victim believed adult pornography was showing on the television. He had been drinking alcohol provided by you. After a period of you cajoling him, the victim performed oral sex on you.
18The victim recalls another occasion where he was sexually assaulted by you when home alone together at the house in Croydon. Whilst seated in the lounge room, on your Pop’s old chair, the victim leaned back, as he felt intoxicated from drinking alcohol. You asked him how he was feeling and then approached him from across the room, as you undressed. You then got on your knees and began to stroke the inside of the victim’s thighs before performing oral sex on him. This is the offending that is the subject of charge 1, the charge of incest.
19You have pleaded guilty to this charge and consented to the offence being dealt with as a rolled-up charge comprising the two acts of sexual penetration; the first act involving you cajoling the victim to perform oral sex on you and the second act involving you performing oral sex on the victim, on these separate occasions.
20After a period your half-brother forcefully told you he would no longer participate in further sexual activity with you. You then ceased offending against him, at which time your half-brother was 13.
21After the offending ceased, your half-brother told no-one about your offending out of a sense of shame and also because you told him not to and he feared the repercussions if he did not comply.
Jill Berry (née Evans)
22I turn now to your offending against your half-sister, Jill Berry (nee Evans). The first time you sexually assaulted your half-sister was in 1996, when the family was living in Mount Evelyn. She was 14-years-old and in Year 9 in secondary school.
23Your room in the house was across the hall from hers. On this occasion you called the victim into your room and she sat down, possibly on your bed. You then put adult pornography onto the television in your room. You told your half-sister to watch the pornography, calling it ‘sex-ed'. While she did so, you pulled a flesh coloured rubber vagina out from a table drawer. You stood in front of her and pulled your pants down, exposing your penis. You then inserted your erect penis into the rubber vagina and told the victim to hold it in her hands while you masturbated into it. She did so. After you ceased, your half-sister ran from your room, into her own bedroom, and cried on her bed. You later told her not to tell anyone about what you had just done. She never did until years later. This is the conduct that is the subject of charge 2 - an indecent act with a child under the age of 16.
24On another occasion the victim recalls you visiting at her home in Mount Evelyn and then driving her back to Nan's house. You told her that your nan was away. Once there, you gave the victim alcohol and at some point made her lie on the floor of the loungeroom. You then removed her pants and underwear, as well as your own, and told her to suck your penis, which she did. This conduct is relevant to charge 4, the representative charge of incest. You then proceeded to perform oral sex on her as she lay on the floor. This conduct is the subject of charge 3 - incest.
25When the victim was between 14 and 15 years of age her family moved to an address in Mooroolbark. After this time you would take the victim away from her home, supply her with alcohol and sexually abuse her.
26On one occasion you took the victim to a football oval in Warrandyte. It was cold and dark. You made the victim perform oral sex on you. This conduct is the subject of charge 4 - incest. The victim recalls this incident because you told her you needed to go to the toilet to 'take out a tampon he had up his ass'.
27The other incident relevant to the representative charge occurred at Phillip Island, when the victim was between 15 and 16 years of age, and you took her to stay at a friend’s holiday house. You became angry when the victim asked to sleep in her own bedroom. In fear of you, she complied with your demand that she sleep in the same bed as you. During the night the victim performed oral sex on you before running away at around 3.30 am to the beach. You searched for her and then returned to the house together.
28The victim recalls that your offending ceased against her when she was approximately 17 years old; around the time she met her then boyfriend, now husband.
29In approximately September 2017, well after these events but before the matter had been reported to police, you visited your half-sister at her home and apologised, saying, 'Sorry for what I did to you. I am not like that anymore'. You repeated your apology in October 2017, telling the victim you were 'sorry for the things I made you do to me' and for the 'things he had done'. Your half-sister listened to what you had to say, but otherwise left the matter to settle.
30Later, in approximately 2015, your half-brother spoke with his sister and, having done so, determined to confront you. He attended at your home and yelled at you. When you refused to allow him into the house he went around the back and punched you to the face a couple of times. He then left. Neighbours rang police, who attended soon after.
31Upon returning home, the victim decided to report your offending to police. In the meantime the police spoke with you about the altercation. You told them your half-brother had assaulted you as ‘payback’ in relation to an incident in 1993, when you were 21 and had raped the complainant. You told police the rape ‘probably did happen’ and that you did not want to press charges for the assault that had just occurred.
32Subsequent to the complaint made by her brother, your half-sister also made a complaint to police in late 2018.
33You were interviewed by police on separate occasions in relation to these matters. On both occasions you broadly agreed with the general details of the family dynamic, but denied all allegations of sexual offending against your half-siblings.
Procedural history
34The procedural history of these charges is somewhat complicated. You were charged with offences in respect of your half-brother in January 2018. A committal hearing was conducted in respect of that matter in June 2018. The matter was to proceed to trial in November 2018 but was adjourned in light of a foreshadowed complaint to be made by the second victim, your half-sister.
35Further charges in respect of the second victim were filed in January 2019 and a committal conducted in respect of that matter in October 2019. A trial date set for November 2020 was vacated due to the impact of COVID-19 on the conduct of jury trials. On 22 April 2021 the matter resolved and you entered a plea to the charges on 4 May 2021.
36Further delay was occasioned in order to obtain psychological material in support of your plea. Your assessment with psychologist Dr Mathew Barth was only able to proceed face-to-face in January 2022.
37I return to the relevance of this procedural history later in my reasons for sentence.
Offence gravity and victim impact
38I turn now to comment on the nature and gravity of your offending.
39Without doubt, this was very serious offending. Sexual offending against children is objectively extremely serious and, as the victim impact statements attest, offending that has lasting consequences for the victims.
40As the older, adult half-brother of the two victims, your offending was a gross breach of the trust both of your siblings were entitled to expect of you. You were the older brother they both idolised. By sexually abusing both of them you profoundly breached their trust. They were entitled to feel safe with you; both when they were away with you and in their home.
41Other matters that increase the objective gravity of your offending include the fact that:
· there were two victims of your offending.
· there was a significant age disparity between you and each of the victims. You were between 21 and 26 years of age, whereas your half-brother was between 12 and 13 and your half-sister between 14 and 17 years of age at the time of your offending. By virtue of this age disparity, both victims were vulnerable to your offending behaviour and were exploited by you.
· the repeated offending against your half-brother involved a considerable degree of manipulation and coercion, including plying the victim with alcohol and pleading and cajoling with him to participate in the sexual activity. The offending occurred in the context of earlier sexual abuse in New South Wales that commenced when he was only 12 years old. The offending ceased only after he forcefully confronted you; you did not desist of your own volition. You told the victim not to tell anyone and somewhat fearful of you, he did not.
· the offending against your half-sister then commenced. The offending against her persisted over a period of four years. This was not isolated or transitory offending. You also engaged in manipulative behaviour to offend against your half-sister including supplying her with alcohol, telling her not to tell anyone and, in relation to the incident in Phillip Island, becoming angry with her to ensure she slept in your bedroom. She did so out of fear.
· finally, the offending has had a multi-faceted, significant and profound impact on the lives of the victims.
42I accept that beyond the violence inherent in the sexual acts you did not otherwise use or threaten violence against the victims. Moreover, that had you been sentenced at the time of these offences you would have been dealt with as a first time, youthful offender.
43In assessing the gravity of the offence constituting charge 1, whilst only one maximum penalty applies, as this is a rolled up charge, I must have regard to all the circumstances of the offending and the totality of the harm caused by the fact the sexual penetration involving your half-brother occurred on two separate occasions when he was alone with you.
44Similarly, in respect of charge 4 I have regard to the fact that in requiring your step-sister to perform oral sex on you at the oval in Warrandyte this was not isolated offending, but rather is representative of other similar conduct where you told her to suck your dick in the lounge room at your nan’s house, and later, at the house in Phillip Island, where, after performing oral sex on you, she ran away to the beach. You are to be sentenced on charge 4 on the basis that the gravity of your offending is heightened and the impact on the victim, viewed in context, was much greater, given this was not an isolated incident. I am mindful, however, that as a representative charge the one maximum penalty applies to charge 4.
45The magnitude of your conduct and the impact on the victims is reflected in their victim impact statements. As each of the victim impact statements attest, the damage caused by your offending has been palpable and profound.
46Your offending against Lawrence Evans has impacted on almost every facet of his life. In his victim impact statement Mr Evans states that your offending completely destroyed or changed his ability to trust others. As a result he says he lost his marriage, friends, family, money, time, idols, innocence and patience. It impacts on the way he parents his own children, becoming overly protective. He says the shame he felt led to substance abuse to escape his feelings of trauma. He says that your conduct has also impacted on those around him and those who have tried to help him, especially over the past six years.
47In her victim impact statement Ms Berry also reflects on the loss of innocence caused by your offending. She asks how you could sexually offend against a child, let alone your own sister. She says she blamed herself for a long time and experienced shame even though she understands 'it is not my shame'. She too has problems trusting others and continues to ask how her own flesh and blood could have betrayed her in the way you did.
48The impact of your offending extended to your mother, Cindy Evans, describing the pain and anguish you have caused her; that your actions fractured the relationship she had with her children, and then grandchildren.
49Incest is an appalling crime. It involves a breach of trust that is fundamental to the fabric of strong family relationships. In your case you exploited the trust of your much younger siblings for your own sexual gratification and took advantage of the opportunity that presented as an older half-brother they both looked up to. You bear a high level of moral culpability for your conduct.
Personal circumstances
50I turn now to your personal circumstances and history.
51In a compelling submission Mr Farrington highlighted your personal circumstances, submitting you have led a difficult and complex life, devoid of genuine relationships and happiness.
52Your most significant relationship was with your Nan and Pop, who were actually your great aunt and uncle, having adopted your mother when she was a child. Your mother had limited involvement in your upbringing. You never met your father and did not have a close relationship with your mother’s husband. You describe your relationship with your Nan and Pop during your assessment with consultant psychiatrist Dr Nicholas Owens in glowing terms, stating that you could not fault them at all and that whilst your Nan was strict, she always supported you.
53
You attended primary school in Croydon, which you did not enjoy. You displayed aggressive behaviour in your early childhood. During your assessment with
Dr Barth you told him you were angry all the time in your childhood but that you did not know why. In Grade 5 you threw a table at a teacher and as a result of this, and other behavioural issues, you were expelled. You were also expelled from Mooroolbark High School in Year 7, due to your behaviour. You continued to struggle academically. You completed secondary school up to Year 10 at Mooroolbark Technical School, leaving that year to commence an apprenticeship.
54Having completed your apprenticeship in welding and boiler making, you worked in this field for many years, including for a period in Darwin when you were 30. However, you told Dr Owens you could not handle life in Darwin and returned to Melbourne because you missed your Nan. You then obtained employment as a postman with Australia Post, where you worked for 13 years. Your employment with Australia Post was terminated when you were charged with this offending.
55You are currently employed working for a timber manufacturing company making play equipment. In a reference provided by your employer dated 1 March 2022 you are described as a person with a strong work ethic who is reliable, mature and able to work independently.
56Your Pop died in 1993. You continued to live with your Nan, who was the most significant source of support for you until her death in 2017. Her death was the cause of profound grief for you. You now have very limited social or emotional support in your life. You have had no intimate relationships or any other sexual experiences in your life. You began drinking alcohol at 21 and are prone to drinking to excess, particularly during periods of personal stress.
Mental health
57
You were assessed by Dr Owen in December 2020 regarding your fitness to plead. Having found you fit to plead, Dr Owen made a number of other observations.
Dr Owen concluded you suffer from depression and anxiety which, in his view, arose from a combination of your prolonged grief following the death of your Nan and distress caused by your current legal situation. He also found you had traits of avoidant and dependent personality disorders. He considered you had ongoing anger difficulties which had been present since childhood.
58Dr Mathew Barth, in his psychological report dated 18 February 2022, states you had significant difficulty discussing your offending conduct. You denied the offending against your half-brother had occurred at all. You did, however, accept responsibility for your offending against your half-sister and expressed regret for this, stating, 'I look back at it now and think why the hell did I do that? I'm a fucking idiot, I’ve ruined her life'.
59Dr Barth states you presented as a socially awkward person with poor social skills. He says you communicate in an eccentric fashion and are often confused by subtlety and nuance in interpersonal contexts, adding to a sense of social alienation. Dr Barth opines that this leaves you feeling perpetually inadequate, resentful and dejected by your inability to establish healthier connections. He states your sexual adjustment has been significantly impacted by your interpersonal problems.
60You had considerable difficulty discussing the motivation for your offending, however in Dr Barth’s opinion it was possible to draw certain conclusions regarding your conduct. He states:[7]
'Firstly, it is highly likely that [Mr Hart’s] conduct with the complainant’s emanated from his pervasive interpersonal and sexual problems. That is, he acted out his feelings of sexual inadequacy and frustration with underage complainants who were known to him. This meant that they did not challenge his sense of inadequacy and self-doubt with regard to sexual intimacy. Further to this, [Mr Hart’s] offending indicated that he has also had difficulty and confusion differentiating between a healthy familial affection with his half-siblings and an erotic attachment. This ultimately led him to be able to overcome the taboos of incest'.
[7]Psychological report of Dr Barth dated 18 February, 2022, page 6 at [37]
61Having conducted psychometric testing, Dr Barth concludes your symptoms of depression are sufficiently severe to meet a diagnosis of persistent depressive disorder (Dysthymia), requiring treatment to address your depressive symptoms and to enhance your self-esteem. Dr Barth reports that you continue to experience intense feelings of sadness and pessimism about your life. You expressed ongoing suicidal ideation. Dr Barth notes that you experience periods of brooding, irritability and sullen despondency when you ruminate about your current legal predicament, however he notes you have experienced periods of emotional disturbance all your life.
62Dr Barth sensibly recommends that you engage in offence-tailored treatment, notwithstanding the protracted period since your offending, given the gravity of your offending conduct coupled with your dysfunctional interpersonal and sexual adjustment and the fact your insight into your behaviour is, in his view, very limited.
63Dr Barth undertook a comprehensive risk assessment utilising the Static-99R and RSVP risk assessment tools. He assessed you as falling within a low-moderate risk of sexual recidivism. Dr Barth assesses that this risk will be likely to reduce if you engage in specialised sex-offender treatment.
Matters relevant in mitigation of sentence
64Having assessed the objective gravity of your offending, I turn now to discuss other matters relevant in mitigation of your sentence.
Guilty plea and remorse
65The most significant of these is your plea of guilty. Although yours was not an early plea and followed contested committal hearings, your plea still has significant utilitarian value. It spared the victims the ordeal of giving evidence at a trial. This is particularly significant, given the emotional distress that would undoubtedly be associated with both victims having to re-live these events. Your plea also saved the community the cost and time associated with a lengthy trial and has heightened utility, given the current delay in trials in the wake of the pandemic.[8]
[8]Worboyes v The Queen [2021] VSCA 169
66By your plea you accept responsibility for your conduct. I also accept that in relation to your half-sister you have expressed regret for your conduct on a number of occasions. You proffered an apology to her on two occasions prior to the charges being laid. You expressed genuine remorse for your conduct towards her in your discussions with Dr Barth and demonstrated some insight into the impact your offending has had on her life.
67The position with respect to your half-brother is more complicated. In stark contrast to your comments regarding your half-sister, you expressly denied any sexual offending against your half-brother during your assessment with Dr Barth. However, in contrast to the position you adopted with Dr Barth, when you were spoken to by police following the assault in 2015 by your half-brother you acknowledged the likely connection with your sexual abuse of the complainant, then stating the rape 'probably did happen'. You asked the police not to press charges against him following his assault upon you.
68
During the course of the plea hearing I raised these issues with your counsel,
Mr Farrington. Mr Farrington is an experienced criminal law barrister who, having conferred with you extensively, confirmed that you had entered your plea to the charges regarding your half-brother voluntarily and that you appreciated the nature of the plea you were entering. I accept this is the position.
69I further accept Mr Farrington’s submission that your denial must be considered in the context of the obvious difficulties you had in discussing your offending behaviours and the motivation for that offending against your half-brother with Dr Barth. This is consistent with Dr Owen’s assessment of your avoidant personality traits. However, in the circumstances I am unable to conclude your plea is accompanied by any genuine remorse for your offending against your half-brother.
70Consistent with the conclusion of Dr Barth, I find you have minimal insight into the motivations or the impact of your offending, particularly against your half-brother. I consider you are you are yet to fully understand or confront the circumstances that led you to offend in this manner against your half-siblings. Clearly Dr Barth’s recommendation that you engage in offence-specific treatment will be necessary for you to deal with these underlying issues.
Previous good character and prospects of rehabilitation
71On your behalf Mr Farrington submitted that you are otherwise a person of good character, with a history of hard work, and that although you have led an isolated life it has been one marked by continuous employment with no subsequent offending in the intervening years. This fact, he submits, is relevant in mitigation of your sentence, and also in assessing your prospects of rehabilitation as excellent.
72The fact you have no prior and, more significantly, no subsequent convictions, is relevant in mitigation of sentence. I also accept that since this offending your life has been characterised by continuous employment and, as your current employer attests, a strong work ethic. Similarly, separate neighbours who wrote character references on your behalf speak of you as being quietly spoken, polite and generous with your time and willingness to help others.[9] I accept your previous good character entitles you to some leniency, however this is modest having regard to the gravity and nature of your offending.
[9]Exhibit 3
73These matters also have a bearing on my assessment of your prospects of rehabilitation. It is significant that in the 20 or more years since this offending there has been no subsequent offending of any nature. However, having regard to the expert psychological evidence, I am unable to characterise your prospects as excellent.
74As assessed by Dr Barth, you remain a low-moderate risk of sexual offending into the future; a risk that may be moderated by completing offence-specific treatment. The complex character traits identified by Dr Barth; namely the fact your interpersonal and sexual adjustment remains dysfunctional, continues to pose a risk, as does your lack of insight into the nature and motivation for your offending. At present I assess you have reasonably good prospects of rehabilitation, but to assess this any higher will very much depend on your engagement in the offence-specific treatment recommended by Dr Barth.
75There does remain a need for the sentence I impose to operate as a specific deterrent against further offending by you of a similar nature.
Burden of imprisonment
76I am conscious that imprisonment will be especially hard for you for a number of reasons.
77First, as highlighted in the report of Dr Barth, you present as socially awkward and aloof with limited interpersonal skills. He describes your communication style as eccentric. You are isolated and alienated in the community and have no close family or other supports. This will make your time in custody, as a first time offender, all the more isolating and difficult.
78Secondly, you have been diagnosed by Dr Barth with a persistent depressive disorder and, in his opinion, you remain at risk of further deterioration without treatment and support. As to the burden of your imprisonment I accept Dr Barth’s opinion that:[10]
[Mr Hart’s] depressive symptoms, his dysfunctional interpersonal adjustment and his social deficits are likely to make him a relatively vulnerable prisoner. He is likely to present a risk of further deterioration in his moods on the immediate aftermath of sentencing and will require close monitoring by prison mental health staff. To that extent, [Mr Hart’s] is likely to find the process of living in the custodial environment to be particularly arduous when compared with other prisoners.
[10]Psychological report of Dr Barth dated 18 February 2022, page 10 at [50]
79I have taken these matters into account in sentencing you. Whilst it was not argued your depressive illness enlivened any of the principles enunciated in Verdins, I accept your complex personality traits, including your persistent depressive disorder, will make your time in custody a difficult one.
80You will also be subject to the restrictions currently in place in custody; of necessity in order to respond to the risks posed by the pandemic. These restrictions, including periods of isolation and a reduction in programs - particularly face to face programs - will also add to the burden of your experience of custody. I have taken each of these matters into account in moderating your sentence.
Delay
81Finally, I have taken into account the fact that this matter has had a complex procedural history. The proceedings had been pending since charges were first initiated in February 2018, until the plea was entered in May 2021. Whilst this delay would undoubtedly have been a source of anxiety for the complainants, the delay occasioned by factors outside your control, including the fact the trial listed in November 2020 had to be vacated due to the pandemic, is also relevant in mitigation of sentence to a degree, as an added stress associated with having these serious charges hanging over your head over these periods. I turn now to other sentencing considerations.
Other sentencing considerations
82The maximum penalty for incest is now 25 years' imprisonment. As I stated at the outset, it was only five years' imprisonment at the time these offences were committed.
83The Sentencing Act1991 requires that I take into account as one of the many sentencing considerations current sentencing practices. The different maximum penalty that now applies qualifies the extent to which I can do so.
84The prosecutor referred me to one decision in the case of Holland,[11] which I have reviewed, as a broadly comparable case. That matter involved a sentence of 30 months' imprisonment for two charges of incest against a sibling, including a representative charge of penile/vaginal penetration representing two occasions of offending between January 2007 and December 2014. However, in that case the court accepted that the offending probably occurred over a two-year period, between 2012 and 2014. At that time the maximum penalty for the offence of incest was also five years' imprisonment.
[11]Alexander Holland (a pseudonym) v The Queen [2018] VSCA 241 (‘Holland’)
85Whilst past decisions may be used to discern a sentencing range, a single case is of limited utility. Clearly the facts in the Holland case differ significantly to those that present here, including the fact that your offending occurred over a significantly longer period of time and against not one, but two victims. There the victim was an adult, not a child; albeit a vulnerable victim due to her intellectual disability. The case of Holland provides only limited guidance. I also bear in mind that past sentencing practices cannot govern or control the sentence to be imposed.[12]
[12]DPP v Dalgliesh (2017) 262 CLR 428
86I have also had regard to the purposes of sentencing as set out in s5 of the Sentencing Act1991. In a case such as this the paramount sentencing considerations are general deterrence, just punishment and denunciation. In sentencing you my sentence must deter others who, as family members, may be minded to sexually abuse children by exploiting the trust inherent in that relationship, and to unequivocally denounce such offending conduct. The objective seriousness of your offending warrants an immediate sentence of imprisonment with a non-parole period fixed.
87Pursuant to s 6B(2)(a) of the Sentencing Act1991 you are to be sentenced as a serious sexual offender on Charges 3 and 4. Section 6D of the Act requires that the protection of the community be the principal purpose of sentencing for those offences. The prosecution does not submit that I should impose a disproportionate sentence to achieve the protection of the community. Given the absence of any subsequent offending since these matters, I agree with that submission.
88Section 6E of the Sentencing Act1991 requires that the term of imprisonment imposed on Charges 3 and 4 must be served cumulatively unless otherwise directed. Whilst I must still have regard to the sentencing principle of totality in imposing a sentence that reflects the totality of your offending and is not crushing, in doing so I must have regard to that provision.
Sentence
89Balancing all the factors to which I have referred, and guided by the maximum penalty applicable to the offences at the time, I sentence you as follows:
90On Charge 1 - the rolled-up charge of incest involving your half-brother, you are convicted and sentenced to a term of two years' imprisonment.
91On Charge 2 - the indecent act with a child under 16 years involving your half-sister, you are convicted and sentenced to a term of 12 months' imprisonment.
92On Charge 3 - incest involving your half-sister, you are convicted and sentenced to a term of 18 months' imprisonment.
93On Charge 4 - the representative charge of incest involving your half-sister, you are convicted and sentenced to a term of two years, three months' imprisonment. This is the base sentence.
94It is appropriate that there be a degree of cumulation in respect of the separate acts of offending against the two victims and having regard to the fact you are to be sentenced as a serious sexual offender on Charges 3 and 4.
95I order that 10 months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 4 and upon each other. This gives a total effective sentence of three years, nine months' imprisonment. I fix a non-parole period of two years, three months' imprisonment before you are eligible for parole.
96Pursuant to s18 of the Sentencing Act 199, I declare that 14 days of pre-sentence detention be reckoned as served.
97Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not entered a plea of guilty to these charges the sentence I would otherwise have imposed would have been a sentence of five years, six months' imprisonment with a non-parole period of three years, nine months.
98Mr Hart, your offending attracts the provisions of the Sex Offenders Registration Act2004 and you are required to comply with the reporting obligations under that Act for life. You will receive a document at the conclusion of this hearing which details your obligations under that Act and which you will be required to sign.
99Can I ask if counsel require any clarification in relation to the sentence I've imposed?
100MR MASELLI: No, not from the defence. Thank you, Your Honour.
101MR SIVARATNAM: No, Your Honour, not from the prosecution.
102
HER HONOUR: Thank you. Do defence want an opportunity to speak with
Mr Hart after this hearing or will separate arrangements be made?
103MR MASELLI: Arrangements have been made. Thank you, Your Honour.
104HER HONOUR: Thank you. There are no custody management issues to be further noted? They were noted when Mr Hart was first remanded.
105MR MASELLI: That's correct. Nothing further, Your Honour.
106HER HONOUR: All right, thank you. I'll ask that court now be adjourned.
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